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PETITIONER: HANSRAJ MOOLJI

       Vs.

RESPONDENT: THE STATE OF BOMBAY

DATE OF JUDGMENT: 12/02/1957

BENCH: BHAGWATI, NATWARLAL H. BENCH: BHAGWATI, NATWARLAL H. JAGANNADHADAS, B. IMAM, SYED JAFFER MENON, P. GOVINDA KAPUR, J.L.

CITATION:  1957 AIR  497            1957 SCR  634

ACT: Ordinance,  duration  of-Promulgation  under  the  Emergency Provisions-Declaration of termination of emergency-Scope and effect-Operation  of  Ordinance  after  end  of   emergency- Government of India Act,1935 (25 & 26 Geo.5 Ch. 42) Sch.  9, s. 72-India and Burma (Emergency Provisions) Act, 1940 (3  & 4 Geo. 6 Ch. 33), Ss. 1 (3), 3-High Denomination Bank  Notes (Demonetisation)  Ordinance,  1946  (Ordinance  No.  III  Of 1946), ss. 4, 7.

HEADNOTE: Under s. 72 Of the 9th Sch. of the Government of India  Act, 1935:  "  The Governor-General may, in cases  of  emergency, make and promulgate ordinances ... and any ordinance so made shall,  for the space of not more than six months  from  its promulgation, have the like force of law as an Act passed by the  Indian  Legislature ... " ; S. I (3) of the  India  and Burma (Emergency Provisions) Act, 1940, provided that s.  72 Of  the  Government of India Act, 1935,  shall  as  respects Ordinances  made during the period beginning with  June  27, 1940,  the date of the passing of that Act, and ending  with such date as His Majesty may by Order in Council declare  to be the end of the emergency, have effect as if 635 the  words " for the space of not more than six months  from its promulgation " were omitted. The  appellant was prosecuted for having on July  11,  1953, contravened the provisions of S. 4 of the High  Denomination Bank Notes (Demonetisation) Ordinance, 1946.  The  Ordinance was promulgated by the Governor-General of India on  January 12,  1946,  but on April 1, 1946, an Order  in  Council  was published in the Gazette of India Extraordinary whereby  the period  of  emergency  referred to in the  India  and  Burma (Emergency Provisions) Act, 1940, was declared to have ended on  April 1, 1946.  It was contended for the appellant  that the  Ordinance in question was not in operation on the  date when the offence was alleged to have been committed and that therefore the prosecution was not maintainable, because  (1) the  Ordinance  had  been promulgated  in  exercise  of  the

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emergency  powers and that it lapsed ipso facto on April  1, 1946,  when the declaration was made that the emergency  was at  an end; and (2) S. 72 of the 9th Sch. of the  Government of  India Act, 1935, having been restored with  effect  from April 1, 1946, one must look to its terms as they originally stood,  to  justify the continuance of the  Ordinance  after April I, 1946. Held, that the deletion of the words " for the space of  not more  than six months from its promulgation " from S. 72  of the  9th Sch. of the Government of India Act, 1935, by s.  1 (3) of the India and Burma (Emergency Provisions) Act, 1940, had the effect of equating Ordinances which were promulgated between  June 27, 1940, and April I, 1946, with Acts  passed by the Indian Legislature without any limitation of time  as regards  their duration, and therefore continuing  in  force until they were repealed. Though  after  April I, 1946, S. 72 Of the 9th Sch.  of  the Government of India Act, 1935, was restored in its  original form,  the  continuance of the Ordinance in  question  after that date had to be determined having regard to the terms of the section as they stood on the date of such  promulgation, as  there was nothing to justify retrospective operation  of the section so restored. J.   K. Gas Plant Manufacturing Co. (Rampur) Ltd. and others v.   King Emperor, [1947] F.C.R. 141, relied on.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal’ Appeal No. 93 of 1956. Appeal  by special leave from the judgment and  order  dated the  April  14, 1955, of the Bombay High Court  in  Criminal Appeal No. 156 of 1955 and Criminal Revision Application No. 435  of  1955  arising out of  Judgment  dated  the  January 3,1955, of the Court of 636 the Additional Chief Presidency Magistrate, Bombay, in  Case No. 9/p of 1954. Purshottam  Tricumdas,  J. B. Dadachanji, S. N.  Andley  and Rameshwar Nath, for the appellant. C.   K. Daphtary, Solicitor-General of India, Porus A.   Mehta and R. H. Dhebar, for the respondent. 1957.  February 12.  The Judgment of the Court was delivered by BHAGWATI J.-This appeal with special leave under Art. 136 of the  Constitution  raises  the  question  whether  the  High Denomination  Bank  Notes (Demonetisation)  Ordinance,  1946 (Ordinance  No.  III of 1946) promulgated by  the  Governor- General  of India on January 12, 1946, was in  operation  on July  11, 1953, when the offence under s. 7 read with  s.  4 thereof was committed by the appellant herein. The  appellant  who  was  the  accused  No.  1  before   the Additional Chief Presidency Magistrate’s Court, Bombay,  was charged  along  with  the accused Nos. 2, 3, 5  and  6  with having  on  or about July II, 1953, transferred by  sale  10 High  Denomination  Bank Notes of the  Denomination  of  Rs. 1,000 each to one Velji Lakhamshi Joshi for Rs. 1,800 at the rate of Rs. 180 per note and thus contravened the provisions of s. 4 of the Ordinance and committed an offence punishable under  s. 7 of the Ordinance read with s. 109 of the  Indian Penal Code. A preliminary objection was urged by the learned counsel for the  appellant that the said Ordinance was not in  operation at  the  date  when the offence was  alleged  to  have  been

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committed  and  that  therefore  the  prosecution  was   not maintainable.   This objection was overruled by the  learned Presidency Magistrate and the trial ended in the  conviction of  the appellant along with the co-accused of  the  offence with  which  they  had  been  charged.   The  appellant  was sentenced  to pay a fine of Rs. 8,000 and in default  suffer six months’ rigorous imprisonment and the co-accused of  the appellant were awarded varying sentences of fine with  which however we are not concerned. The appellant took an appeal to the High Court of Judicature at Bombay being Criminal Appeal No. 156 637 of  1955.  The State of Bombay, the respondent herein,  also filed an application for enhancement of the sentence,  being Criminal  Revision  Application No. 435 of  1955.   The  co- accused  of  the appellant had also  filed  appeals  against their  convictions and sentences of fine imposed  upon  them and all these appeals and the application of the  respondent were heard together by a Division, Bench of the High  Court. The High Court agreed with the learned Presidency Magistrate in regard to the finding of fact and held that the appellant had  in fact transferred by sale 10 High  Denomination  Bank Notes of Rs. 1,000 each to the possession of Velji Lakhamshi and  his act fell within the prohibition enacted in s. 4  of the   Ordinance.    The  High  Court  also   overruled   the contentions  which  were urged before it in  regard  to  the Ordinance having lapsed and ceased to be in operation before July 11, 1953, the date on which the offence was alleged  to have   been   committed.   It  accordingly   confirmed   the conviction  recorded  against the appellant by  the  learned Additional  Chief Presidency Magistrate.  In regard  to  the sentence the High Court saw no ground for enhancing the same and  confirmed  the  sentence of fine of Rs.  8,000  and  in default  six  months’ rigorous imprisonment which  had  been awarded   by  the  learned  Presidency  Magistrate  to   the appellant. The  appellant applied to the High Court for  a  certificate under  Art.  134  (1) (c) of  the  Constitution.   The  said application was however dismissed by the High Court with the result  that  he applied for and obtained  from  this  Court special leave under Art. 136 of the Constitution. The decision of this appeal turns on the construction of  s. 72 of the 9th Sch. of the Government of India Act, 1935  (25 and  26 Geo. 5 ch. 42) and s. 1 (3) of the India  and  Burma (Emergency Provisions) Act, 1940 (3 and 4 Geo. 6 ch. 33). Section  72 of the 9th sch. of the Government of India  Act, 1935, read as follows: " The Governor-General may, in cases of emergency, make  and promulgate  ordinances for the peace and good Government  of British India or any part thereof, and any ordinance so made shall, for the 638 space  of  not more than six months from  its  promulgation, have  the like force of law as an Act passed by  the  Indian Legislature;  but the power of making ordinances under  this section is subject to the like restrictions as the power  of the Indian Legislature to make laws; and any ordinance  made under this section is subject to the like disallowance as an Act passed by the Indian Legislature, and may be  controlled or ,superseded by any such Acts.  " Section 1 (3) of the India and Burma (Emergency  Provisions) Act, 1940, ran as under: "  Section  seventy-two  of the  Government  of  India  Act, (which,  as set out in the Ninth Schedule to the  Government of India Act, 1935, confers on the Governor-General power to

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make  Ordinances in cases of emergency) shall,  as  respects Ordinances made during the period specified in section three of  this Act, have effect as if the words "for the space  of not  more  than  six  months  from  its  promulgation"  were omitted;  and,  notwithstanding the provision  in  the  said section  seventy-two  that the power  of  making  Ordinances thereunder is subject to the like restrictions as the  power of the Indian Legislature to make laws- (a)  Ordinances  may, during the said period, be made  under that  section affecting the Army Act, the Air Force Act,  or the Naval Discipline Act; and (b)  Section  one  hundred and eleven of the  Government  of India Act, 1935 (which exempts certain British subjects from certain  Indian Laws) shall not apply to any ordinance  made under the said section seventy-two during that period." Section  3  referred  to  hereinabove  -was  in  the   terms following: "  The period referred to in the preceding sections  is  the period  beginning with the date of the passing of  this  Act and  ending  with such date as His Majesty may by  Order  in Council declare to be the end of the emergency which was the occasion of the passing of this Act.  " The  India and Burma (Emergency Provisions) Act,  1940,  was passed on June 27, 1940 , and was an Act to 639 make  emergency  provisions with respect  to  Government  of India  and  Burma.  On April 1, 1946, was published  in  the Gazette  of  India  Extraordinary  His  Majesty’s  Order  in Council  called  "  The  India  and  Burma  (Termination  of Emergency)  Order, 1946 ". By the said order the  period  of emergency  referred  to  in  s. 3 of  the  India  and  Burma (Emergency Provisions) Act, 1940, was declared to have ended on April 1, 1946.  The period specified in s. 3 of the  said Act thus extended from June 27, 1940, to April 1, 1946.  The Ordinance  in question was promulgated on January 12,  1946, and was therefore within the said period. The  argument which was addressed before us by  the  learned counsel for the appellant based on these provisions was  (a) that as soon as the declaration that the emergency was at an end  was  made on April 1, 1946, the original  position  was restored  and  the  Ordinance in  question  which  had  been promulgated  in exercise of the emergency powers ipso  facto lapsed  when the emergency was declared to have  ended,  (b) that,  in  the alternative, s. 72. of the 9th  Sch.  of  the Government  of  India Act, 1935, having been  thus  restored with  effect from April 1, 1946, one must look to its  terms as  they originally stood to justify the continuance of  the ordinance in question after April 1, 1946, whensoever it may have been promulgated. It  will be useful at this stage to see what was the  scheme provided in the Government of India Act, 1935, for  enacting legislative  measures.   It  may  be  noted  that  the   Act envisaged  the  establishment of the  Federation  of  India. Part II, ch. 3 provided for the constitution of the  Federal Legislature  which  was  to consist of  two  chambers  known respectively  as  the  Council of States and  the  House  of Assembly.  The normal legislative procedure required a  bill to be passed by both the Chambers of the Federal Legislature and  assented  to  by the  Governor-General.   There  was  a distribution  of  legislative  powers  between  the  Federal Legislature and the Provincial Legislatures and the  Federal Legislature  was invested with the power to make  laws  for. the whole or any part of British India or for any  Federated State with respect to any of the matters enumerated

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640 in  the  Federal  Legislative List and any  of  the  matters enumerated  in the Concurrent Legislative List.   Power  was however given, to the Federal Legislature, if the  Governor- General  in  his discretion declared by a  "Proclamation  of Emergency"  that  a  grave  emergency  existed  whereby  the security of India was threatened, whether by war or internal disturbance, to make laws for a Province or any part thereof with  respect  to  any  of the  matters  enumerated  in  the Provincial  Legislative List.. These were the powers of  the Federal Legislature to enact legislative measures. The   Governor-General  was,  however,   conferred   certain legislative  powers in Part II, ch. 4. Power  was  conferred upon  him to promulgate Ordinances if at any time  when  the Federal Legislature was not in session he was satisfied that circumstances existed which rendered it necessary for him to take immediate action.  Ordinances thus promulgated were  to have  the  same  force and effect as  Acts  of  the  Federal Legislature assented to by the Governor-General.  But  every such  Ordinance would cease to operate at the expiration  of six months from the re-assembly of the Legislature.  Similar power was conferred upon the Governor-General to  promulgate Ordinances   if   at  any  time  he   was   satisfied   that circumstances existed which rendered it necessary for him to take  immediate  action  for the  purpose  of  enabling  him satisfactorily  to discharge his functions in so far  as  he was  required  in  the  exercise  thereof  to  act  in   his discretion  or  to exercise his individual  judgment.   Such Ordinances  also were to have the same force and  effect  as the  Acts  of  the Federal Legislature assented  to  by  the Governor-General and were to continue in operation for  such period not exceeding six months as may be specified  therein but could by subsequent Ordinances be extended for a further period  not exceeding six months.  Power was also  conferred upon the Governor-General if at any time it appeared to  him that  for  the  purpose of enabling  him  satisfactorily  to discharge his functions in so far as he was required in  the exercise  thereof to act in his discretion or,  to  exercise his  individual  judgment it was  essential  that  provision should be made by legislation, to enact I SUPREME COURT REPORTS                     641 Governor-General’s Acts which when enacted were to have  the same  force  and effect as Acts of the  Federal  Legislature assented to by the Governor-General.  These were the special legislative powers conferred upon the Governor-General which could  be  exercised  by him  when  the  normal  legislative procedure  could not be resorted to.  It is worthy  of  note however that howsoever and under whatever circumstances  the legislative  powers  vested  in  the  Governor-General  were exercised  by him, the Governor-General’s Acts thus  enacted and  the Ordinances thus promulgated were equated  with  the Acts of the Federal Legislature assented to by the Governor- General. Part XIII enacted Transitional Provisions.  A period of time was bound to elapse between the commencement of Part III  of the  Act which related to the Governor’s Provinces  and  the establishment  of  the  Federation and s.  317  of  the  Act continued  in force certain provisions of the Government  of India Act with amendments consequential on the provisions of the  Act  set out in the 9th Sch. thereof until  the  estab- lishment of the Federation.  Section 72 above quoted  formed part of the 9th Sch. under the caption " Indian Legislature" and  conferred upon the Governor-General power to  make  and promulgate  Ordinances for the peace and good Government  of

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British  India  or any part thereof in cases  of  emergency. Ordinances  thus  promulgated  by  the  Governor-General  in exercise  of  the  power thus conferred  upon  him  were  to continue  in  operation for the space of not more  than  six months from the date of their promulgation and were to  have the  like  force  of  law  as  Acts  passed  by  the  Indian Legislature.  They were also equated with the.  Acts  passed by  the  Indian Legislature by having resort to  the  normal legislative  procedure  set out in the Government  of  India Act. Even  though the Governor-General’s Acts and the  Ordinances promulgated by him were thus equated with the Acts passed by the  Federal  Legislature or the Indian Legislature  as  the case  may  be,  the period of duration  thereof  had  to  be determined.  Every statute for which no time is limited is I 642        SUPREME COURT REPORTS                    [1957] called  a  perpetual Act, and its duration  is  prima  facie perpetual.   It  continues in force until  it  is  repealed. (Vide Craies on Statute Law, 5th Ed. p. 374; Halsbury’s Laws of  England, Hailsham Ed., Vol.  XXXI, p. 511,  para.  664). If an Act contains a proviso that it is to continue in force only for a certain specified time, it is called a  Temporary Act.   This result would follow not only from the  terms  of the  Act itself but also from the fact that it was  intended only  as  a  temporary measure.  This ratio  has  also  been applied  to  emergency measures which  continue  during  the subsistence  of the emergency but lapse with  the  cessation thereof.    It  was  therefore  contended  that   Ordinances promulgated  under  the  emergency  powers  vested  in   the Governor-General would be in operation during the period  of emergency  but  would  cease to be  in  operation  once  the emergency  was declared to have ended.  In the instant  case before  us  the  Ordinance in question  was  promulgated  in exercise  of  the emergency powers vested in  the  Governor- General  under  s. 72 of the 9th Sch. of the  Government  of India  Act, 1935, and it was urged that the  Ordinance  thus promulgated  would  cease  to  be  in  operation  after  the emergency  was declared to have ended on April 1,  1946,  by the India and Burma (Termination of Emergency) Order,  1946, in  spite of the words of limitation " for the space of  not more  than  six months from its promulgation "  having  been omitted  from  s.  72  by s. 1(3) of  the  India  and  Burma (Emergency Provisions) Act, 1940. Reliance  was  placed in support of this contention  on  the observations  of  Vardachariar  C. J.  in  King  Emperor  v. Benoari Lall Sharma and others(1):  " Legislation by Ordinance has no doubt been given the same effect  as  ordinary  legislation and the ambit  as  to  the subject-matter is the same in both cases.  But there are two fundamental  points  of  difference which  have  a  material bearing  on  the present question: One is that by  the  very terms of s.72 of the Ninth Schedule to the Constitution Act, the operation of the Ordinance is limited to a period of (1)  [1943] F.C.R. 96, 137. 643 six  months (and even now it is only temporary,  though  the particular  limit  has been removed), and  secondly,  it  is avowedly the exercise of a special power intended to meet an emergency." Zafrulla  Khan  J. also had expressed himself  to  the  same effect in King Emperor v. Sibnath Banerjee (1): "  The legislature can at any time enact a measure and  such measure  can remain in force without any limit of time;  but the exercise of the Ordinance-making power is limited in two

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ways (1) by the limitation as to the circumstances in  which it  can be exercised, and (ii) by the limitation as  to  the time  during  which  any measure so enacted  can  remain  in operation.  The  existence of an emergency  is  a  condition precedent  to the exercise of the power.  The fact that  the Court  cannot go behind a declaration of emergency  made  by the Ordinance-making authority cannot affect this  question. The power was intended to be availed of and could be availed of only in an emergency, whereas ordinary legislation is not governed by any such limitation.  Similarly, an Ordinance is necessarily  of  limited duration, whether under  s.  72  or under   the  terms  of  the  India  and   Burma   (Emergency Provisions) Act of 1940." An  argument was accordingly addressed before us  that  even though the Ordinance in question had been promulgated during the  period  specified  in  a. 3  of  the  India  and  Burma (Emergency  Provisions)  Act, 1940, viz., between  June  27, 1940,  and April 1, 1946, and s. 72 of the 9th Sch.  of  the Government  of  India  Act, 1935, was to be  read  with  the omission  of the words " for the space of not more than  six months from its promulgation " therefrom, the effect of such omission  was not to continue the duration of the  Ordinance in  question  in  any  event  beyond  April  1,  1946.   The Ordinance  lapsed  or  ceased to be  in  operation  on  the, declaration  having  been made on April 1,  1946,  that  the emergency had ended. This  argument  however  ignores  the  fact  that   whatever Governor-General’s Acts were enacted or (1)  [1944] F.C.R. 1, 12. 83 644 Ordinances  promulgated  by him in exercise of  his  special legislative  powers or in exercise of the  emergency_  power conferred  upon  him  by  s.  72 of  the  9th  Sch.  of  the Government  of  India Act, 1935, were all equated  with  the Acts  of the Federal Legislature or the Indian  Legislature, as the case may be, assented to by the Governor-General.  If there  was  a  limitation to be found in  the  Acts  or  the Ordinances themselves in regard to the duration thereof  the same  was  to prevail.  But if no time was  limited  in  the enactment  itself  for its duration it was  to  continue  in force  until it was repealed.  If by the operation of  s.  1 (3) of the India and Burma (Emergency Provisions) Act, 1940, the  words " for the space of not more than six months  from its promulgation " were omitted from s. 72 during the period specified  in s. 3 of that Act, viz., June 27,1940 to  April 1,  1946, there was no limitation of the period of  duration of  the Ordinance in question and the Ordinance  having  the like force of law as an Act passed by the Indian Legislature without  any limitation on its duration was to  continue  in force until it was repealed.  The emergency under which  the Governor-General  was  invested with the power to  make  and promulgate  Ordinances for the peace and good government  of British  India  or  any part thereof under  s.  72  was  the condition  of the exercise of such power, by  the  Governor- General and did not impose any limitation on the duration of the  Ordinances  thus  promulgated.   For  determining   the duration  of  such  Ordinances  one  had  to  look  to   the substantive  provisions of s. 72 which in terms enacted  and laid  down the limitation of "not more than six months  from its  promulgation " on the life of the Ordinance.  If  these words  had  not been omitted by s. 1 (3) of  the  India  and Burma (Emergency Provisions) Act, 1940, the Ordinances  thus promulgated -would have been of a duration of not more  than six  months from their promulgation.  Once these words  were

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omitted  by  a.  1 (3) of the  India  and  Burma  (Emergency Provisions)  Act,  1940,  s.  72 of  the  9th  Sch.  of  the Government of India Act, 1935, would read as under:- 645 The  Governor-General may, in cases of emergency,  make  and promulgate  ordinances for the peace and good government  of British India or any part thereof and any ordinance so  made shall.................. have the like force of law as an Act passed  by the Indian Legislature; but the power  of  making ordinances  under  this  section  is  subject  to  the  like restrictions as the power of the Indian Legislature to  make laws;  and  the like disallowance as an Act  passed  by  the Indian  Legislature, and may be controlled or superseded  by any such Act." The effect of the deletion of these words from s. 72 leaving the section to be read as above had the necessary effect  of equating the Ordinances which were promulgated between  June 27, 1940, and April 1, 1946, with Acts passed by the  Indian Legislature without any limitation of time as regards  their duration.   Ordinances  thus promulgated were  perpetual  in duration  and continued in force until they  were  repealed. This  position was considered by the Federal Court in J.  K. Gas  Plant  Manufacturing Co., (Rampur) Ltd. and  others  v. King Emperor (1) where Spens C. J. observed:- "  These Ordinances were made under the powers conferred  on the  Governor-General by s. 72 of the Ninth Schedule to  the Constitution  Act,  as  amended  by  the  India  and   Burma (Emergency  Provisions)  Act, 1940 (3 & 4 Geo. 6,  Ch.  33). Under  the  said s. 72, as it originally  stood,  Ordinances were  limited to an effective life of six months  only  from the  date of promulgation.  Sub-section (3) of s. I  of  the said  Act, however, provided that in respect  of  Ordinances made under s. 72 during the period specified in s. 3 of  the Act, s. 72 should have effect as if the words ,for the space of  not  more than six months from  its  promulgation"  were omitted.   The period specified in s. 3 of the Act is "  the period  beginning with the date of the passing of  this  Act and  ending  with such date as His Majesty may by  Order  in Council declare to be the end of the emergency which was the occasion  of  the  passing of this Act." The  date  of  ‘the passing of the (1)  [1947] F.C.R. 141, 161. 646 said Act was the 27th June, 1940, and the emergency was  not notified to have come to an end on the 1st April, 1946. It  was contended on behalf of the appellants that the  true construction  to  be  given to s. 72 as so  amended  was  in effect to substitute in s. 72 in respect of the duration  of an  Ordinance, -the period specified in s. 3 of the Act  for the original six months’ period and that accordingly on  the expiration  of  that period, viz., on the 1st  April,  1946, Ordinances  made after the passing of the Act  automatically came  to an end.  It was not made very clear how  one  could arrive  at such a construction.  It appears to be  based  on the  suggestion  that the power to promulgate  an  Ordinance under s. 72 was by the section confined to the existence  of an emergency, Cf: the words in the sub-section "in cases  of emergency  ", and that the Act was intituled an Act to  make emergency provision with respect to the Government of  India and  Burma  and  defined the period  of  emergency.   Unless therefore  the construction contended for by the  appellants was accepted no period would be provided for the continuance of  these  Ordinances,  and that could  not  have  been  the intention of the legislature, as the ordinance-making  power of  the Governor-General was recognised as  temporary  only.

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In  our opinion, the emergency on the happening of which  an Ordinance  can be promulgated is separate and distinct  from and   must  not  be  confused  with  the,  emergency   which occasioned the pawing of the Act and the clear effect of the words  of the, Act on s. 72 is that  Ordinances  promulgated under that subsection during the period specified in s. 3 of the  Act  are  subject to no time  limit  as  regards  their existence  and  validity, unless imposed by  the  Ordinances themselves,  or  other amending  or  repealing  legislation, whether by Ordinance or other. wise.  In our judgment, it is clear that the second Lahore Tribunal did not cease to exist or  to have jurisdiction in the case under appeal by  reason of  the  expiration on the 1st April, 1946,  of  the  period specified in s. 3 of the Act in question." In  our  opinion,  the above observations  of  Spens  C.  J. enunciate the correct position.  The Ordinance in 641 question  having been promulgated during the period  between June 27, 1940, ’and April 1, 1946, was perpetual in duration and continued in force until it was repealed.  Our attention has not been drawn to any subsequent Ordinance or Act of the Indian Legislature amending or repealing the said  Ordinance with the result that it continues to be in force and was  in operation on July 11, 1953, the date on which the offence in question was committed by the appellant. This  position  was  recognized in the  Adaptation  of  Laws Order,  1950, issued under -the Constitution Of  India.   In the Second Schedule to the said Order were contained several Central  Ordinances enacted between 1940 and 1946  including the High Denomination Bank Notes (Demonetisation) Ordinance, 1946 (Ordinance No. III of 1946) where in s.. II thereof the words  " Part A States and Part C States " were to  be  sub- stituted for "the provinces".  It is not necessary to  refer to  the other Ordinances appearing in this  compilation  but suffice  it  to say that in respect of  all  the  Ordinances which  were  thus  promulgated by  the  Governor-General  in exercise of the power conferred upon him under s. 72 of  the 9th  Sch.  of  the  Government  of  India  Act,  1935,   the continuance thereof even after April 1, 1946, was predicated and  the  adaptations prescribed in the Adaptation  of  Laws Order,  1950,  issued under the Constitution of  India  were made applicable thereto. This  position  is  further supported by  referring  to  the relevant  provisions of the Reserve Bank of India Act,  1934 (II  of  1934).   Section 26 of that Act  provided  ill  (1) Subject  to  the provisions of sub-section (2),  every  bank note shall be legal tender at any place in India in  payment or on account for the amount expressed therein, and shall be guaranteed by the Central Government. (2)On  recommendation  of  the  Central  Board  the  Central Government  may,  by notification in the Gazette  of  India, declare  that,  with  effect  from  such  date  as  -may  be specified  in the notification, any series of bank notes  of any  denomination,  shall cease to be legal tender  save  at such  office or a agency of the bank and to such  extent  as may be specified in the notification. 648 Under  s. 1 (2) of the Act as it stood, the Act extended  to whole  of  India excepting the State of Jammu  and  Kashmir. The’   High   Denomination   Bank   Notes   (Demonetisation) Ordinance,  1946 (Ordinance No. III of 1946)  declared  that Denomination  Notes of the denominational value of Rs.  500, Rs. 1,000 or Rs. 10,000 ceased to be legal tender in payment or on account at any place in British India on the expiry of January  12,  1946.   The  Ordinance  having  continued   in

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operation even after the declaration of the emergency having come  to  an end was made on April 1, 1946, the  said  notes continued to be ineffective as legal tender in India, though the  position  in Jammu and Kashmir in regard  to  the  same could not be affected by reason of the Reserve Bank of India Act,  1934, not having been made applicable to the State  of Jammu  and Kashmir as stated above.  On September 25,  1956, however, the Jammu and Kashmir (Extension of Laws) Act, 1956 (LXII of 1956) being an Act to provide for the extension  of certain laws to the State of Jammu and Kashmir was passed by the  Parliament.  In the Schedule to that Act was  contained the Reserve Bank of India Act, 1934 (II of 1934).  The words "  except the State of Jammu and Kashmir" were omitted  from s.  1,  sub-s. (2) and s. 26A was added after s. 26  of  the Act. Section 26A provides:- ,, Notwithstanding anything contained in section 26, no bank note of the denominational value of five hundred rupees, one thousand  rupees  or ten thousand rupees issued  before  the 13th day of January, 1946, shall be legal tender in  payment or on account for the -amount expressed therein. The  law  in the State of Jammu and Kashmir with  regard  to these High Denomination Bank Notes issued before January 13, 1946, was thus brought into line with the law as it obtained in  the rest of India.  This would certainly have  not  been done  but  for  the  acceptance of  the  position  that  the Ordinance  in  question continued in  operation  even  after April  1, 1946, and was in operation right  throughout  even after April 1, 1946. 649 The alternative argument addressed before us by the  learned counsel for the appellant need not detain us at all, for the simple  reason  that reading s. 72 in the  manner  suggested would be tantamount to giving a retrospective effect to  the section as it originally stood in regard to Ordinances which had  been  promulgated between June 27, 1940, and  April  1, 1946.   There  is  nothing  to  justify  such  retrospective operation.   As regards such Ordinances the period of  their duration   had  to  be  determined  having  regard  to   the provisions  of s. 72 as they stood with the omission of  the words  " for the space of not more than six months from  its promulgation " therefrom during tHe period specified in s. 3 of the India and Burma (Emergency Provisions) Act, 1940, and the  Ordinance in question was therefore not limited to  the space  of  not  more than six months from the  date  of  its promulgation  but  was perpetual in its  duration  with  the result that it continues in operation until it is  repealed. There is no warrant for reading the provisions of s. 72 with the omitted words restored to their original position  after April  1,  1946,  while  determining  the  duration  of  the Ordinances which had been promulgated between June 27, 1940, and April 1, 1946. Both  the contentions urged by the learned counsel  for  the appellant before us having thus failed, it follows that  the High  Denomination  Bank Notes  (Demonetization)  Ordinance, 1946  (Ordinance No. III of 1946) was in operation  on  July 11, 1953, the date on which the offence was committed by the appellant  and the appellant was rightly convicted  by  both the  courts  below.   The  appeal  will  accordingly   stand dismissed. Appeal dismissed. 650